ML20205G815
| ML20205G815 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/04/1985 |
| From: | Ellis J Citizens Association for Sound Energy |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20205G821 | List: |
| References | |
| CON-#485-148 OL, NUDOCS 8511130352 | |
| Download: ML20205G815 (51) | |
Text
{{#Wiki_filter:I ( y. ( ') 11/4/85 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ushie c BEFORE THE ATOMIC SAFETY. AND LICENSING APPEAL BOARD 75 NOV 12 AH :1 In the Matter of l DocketNos.50-445% l and 50-446 fl[CkifNG kl' TEXAS UTILITIES ELECTRIC 1 / COMPANY, et al. l ERANCH i (Application for an (Comanche Peak Steam Electric i Operating License) Station, Units 1 and 2) l CASE'S (MAIN DOCKET) ANSWER TO APPLICANTS' 10/21/85 PETITION FOR DIRECTED CERTIF7. CATION OF LICENSING BOARD ORDER OF OCTOBER 2, 1985 INDEX Beginning Page No. Foreword 1 There is no matter raised in Applicants' Petition which is properly before the Appeal Board at this time. 2 It is appropriate for the Licensing Boards to put Applicants on notice of their concerns 5 Applicants' statements regarding CASE's having filed contentions on character and competence previously are incorrect: 7 CASE's Proposed Contention 1 7 CASE's 9/14/82 Motion to Add a New Contention 9 Applicants' statement of the issues covered by CASE's Contention 5 is incorrect: 12 ACORN's Offer of Proof 12 Quality Assurance, as set forth in 10 CFR Part 50, Appendix B, is within the scope of CASE's Contention 5 13 Design and design OA are also a part of CASE's Contention 5 and are specifically recognized issues in these proceedings 14 8511130352 851104 PDR ADOCK 05000445 O PDR 1 l Tfo3
Applicants' statement of the issues covered'by CASE's Contention 5 is incorrect (continued): Competence and aspects of. character.are already included in this case: 19 Competence..(including. competence of Applicants' management) is now, and has always been, within the scope of CASE's Contention 5; it is also covered under design / design OA In addition,~certain aspects of Applicants' character are already included in this case Credibility is an issue in these proceedings; in addition, the Licensing Board must determine the credibility of each witness or-affiant in order to arrive at a reasoned decision 27 -General' discussion 30 In conclusion .34 Applicants' statement that "the' Board has left the Applicants in the position where they do not know what is or is not to be litigated" is . Incorrect 38 Applicants have falled to show that they have been harmed or that the Boards' actions which are at issue have affected the basic structure of-the proceeding in a pervasive or unusual manner 40 Applicants' "new management" is not all new 43 Applicants' Current Management Views and Management Plan for Resolution of AllLIssues (Management Plan) and CPRT Plan: 46 ~
- Applicants' concerns regarding the Licensing Board's possibly ruling that "if CPRT did not have the
. requisite ' independence' in the view of the ASLB, i' any testimony by CPRT personnel might be L inadmissible".are totally without merit'or support 46 l-The Licensing Board did not reject Applicants' Case Management Plan 47 j' 'The CPRT is not simply verifying the adequacy of . construction 48 In summary-49 i
Attachment:
2 page Applicants' 10/25/85 letter to the Licensing Boards advising that Applicants would be sending information to the Boards on matters regarding-l affidavits attached to Applicants' summary disposition motions and representativeness of U-bolt sample 2
tcl A. ~ 11/4/85 ' UNITED STATES'0F AMERICA NUCLEAR REGULATORY COMMISSION-BEFORE Tile' ATOMIC SAFETY.' AND LICENSING APPEAL BOARD ~ In the Matter. of l Docket Nos. 50-445 I and 50-446
- TEXAS UTILITIES ELECTRIC i
COMPANY, et al. l l (Application for an -(Comanche; Peak Steam Electric-l Operating License) Station, Units -1:and 2) 1- . CASE'S (MAIN DOCKET) ANSWER TO APPLICANTS' 10/21/85 PETITION FOR DIRECTED CERTIFICATION OF LICENSING BOARD ORDER OF OCTOBER 2, 1985 On October 21, 1985,' Applicants flied their Petition for Directed Certification of Licensing Board Order of October 2, 1985. CASE (in the Main Docket, or Docket 1) hereby flies this, its Answer to Applicants' 10/21/85 Petition for. Directed' Certification of Licensing Board Order of-October 2, 1985.- In Applicants' Petition,:they have stated (pages 16 and'17) that the Appeal Board should grant their Petition and: "1. Instruct the Licensing Boards to cease permitting any-consideration of, management character'or competence unless -and until a' formal sua sponte. declaration has been made with respect thereto by the Board in Docket 31 (the only Board which has jurisdiction over-such an issue). "2.- Instruct the Licensing Boards that in the event a decision is reached to declare a sua sponte issue, such issue may not include.inquireslas to the character and competence of ~ Individuals no longer involved in the project,nor inquires as to the prior conduct of this litigation; -"3. Grant to the applicants-such,other and further relief as the -Appeal Board deems-proper in the circumstances." 1 i
c 1 1 -{ 'T CASE opposes Applicants' Petition. -As will be demonstrated herein (and in CASE's response in Docket 2, which is being sent separately), there is no matter raised in Applicants' Petition which is properly before the Appeal Board at this time. Their Petition is, in effect, an appeal of a non-existent Licensing Board Order; there is, in fact, no order by the Licensing Board on which the Appeal Board is being asked to act. Applicants are asking the Appeal Board to take action on some possible future action of the Board which may o* may not ever materialize. They have falled to show that any harm'has been'done to Applicants by any Licensing Board order. Further, Applicants' Petition is based upon erroneous premises and relied on'NRC precedents which are not applicable in this instance. To the extent that it asks the Appeal Board to order the Licensing Boards to cease permitting consideration of issues which are being (and have been for years) s litigated under CASE's duly-accepted contention, it is improper, without foundation, and untimely by two or three years. CASE's position is supported by the following specific points: There is no matter raised in Applicants' Petition which is properly before the Appeal Board at this time. Their Petition is, in effect, an appeal of a non-existent Licensing Board order. The specific wording in the Licensing Board's 8/29/85 Memorandum (Proposal for Governance of this Case) (Exhibit A attached to Applicants' pleading) with which Applicants are primarily concerned is set forth on page 14 of Applicants' pleading. Applicants state, in part: "In the order of August 29, 1985, the Boards articulated certain matters to be addressed as follows: 2
r 3 1 \\ "' Consideration should be given to whether Applicants incorrectly defended design errors or incomplete design documents before this Board. Exh. A at 5, paragraph 7. This wording with which Applicants are concerned is preceded (as stated by Applicants -at page 4 of their pleading) by the following wording at the top of page 4 of the Licensing Boards' 8/29/85 Memorandum: "For the purpose of providing guidance to the parties, we have reached the following tentative, preliminary and non-binding conclusions:" (Emphases added.) The Boards have not ordered the Applicants to do anything; as stated, they merely made the commenta to provide guidance to the parties (in full accord with the Byron Appeal Board decision). The next points with which Applicants take issue *are: i "'How CPRT will address managements' responsibility for . (b) failure to disclose one or more management studies to CASE pursuant to discovery requests, (c) possible inadequacles in the technical analyses contained in Applicants' filings in this case, including its summary disposition filings,... (e) Applicants' conduct with respect to Mr. Lipinski and to Witness F, both of whom appear to have made at least some charges of technical validity... (f) the attempt to defend the qu'ality of QA/QC for coatings and for the liner plate (g) the apparent inability to understand and properly evaluate the engineering contentions of Mark Walsh and Jack Doyle, including the apparently erroneous ' argument that Applicants' engineering practices were standard industry practice. Exh. A at 6-7." These quoted portions of the Boards' 8/29/85 Memorandum are preceded (as stated by Applicants on page 4) by the following wording: "Some other questions that concern us are:" Again, the Boards have not ordered the Applicants to do anything; as stated,' they merely made their comments to put the parties on notice of the 3 .c
l '. Boards' concerns (again, in full accord with the Byron Appeal Board decision). There is no wording ln the Boards' 8/29/85 Memorandum and Order on which th$ Appeal Board can properly be asked to rule. Applicants also express concern (Applicants' pleading at pages 5 through 8) with portions of the Boards' 10/2/85 Memorandum and Order -(Applicants' Motion for Modification) (Exhibit C attached to Applicants' pleading)/1/. Howeyer,-Applicants are not being ordered to do anything by the Licensing Board. As with the Licensing Boards' 8/29/85 Memorandum and Order, there is, in fact, no order by the Licensing Board on which the Appeal Board is being asked to act (and none has been cited by Applicants).- Applicants are asking the Appeal Board to take action on some possible future action of the Licensing Boards which may or may not ever materialize. Further, as will be discussed in more detall later herein, Applicants have failed to show that any harm has been done to them by either the Licensing Boards' 8/29/85 or it 10/2/85 Memorandum and Order, and Applicants have relled upon erroneous premises and NRC precedents which are not applicable in this instance. .. f 1/ The Licensing Board issued its 10/2/85 Memorandum and Order without CASE's'being afforded the opportunity to respond. 4
D It is appropriate for the Licensing Boards to put Applicants on notice of their concerns On page 4_ of Applicants' pleading, they discuss certain comments in the Licensing Boards' 8/29/85 Memorandum (Applicants' Attachment A) which " applicants deemed to be erroneous as a matter of law or fact." However, as acknowledged by the Applicants, the Licensing Boards have made no prejudgement regarding either of these items. At the top of page 4 (Applicants' Attachment A) the Boards state "we have reached the following tentative, preliminary and non-binding conclusions." It appears to CASE that the Boards were simply putting the Applicants on notice of their concerns and thinking regarding the case at this point in time. The Boards are giving Applicants yet another opportunity to provide the Boards with reasoned rationale _and explanations for the listed anomalies which the Boards have brought to Applicants' attention. The Boards, in so ~ doing, have complied with the precedent set forth by the Byron Appeal Board 12!- /2/ See Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 m : and 2), ALAB-770, May 7, 1984 Memorandum and Order, page 10, which states: "In short, in the situation confronting it, we think that the Board should have adopted the alternative of ' informing the parties now of the substance of [1ts) views on the quality assurance issues, retaining jurisdiction over them, and providing for further proceedings before [it] when the various inspections, investigations and remedial actions become ripe for consideration.'" (Footnote omitted.) (It should be noted that CASE, with few exceptions, does not have copies of the' bound versions of NRC precedents; for the most part, we .have copies of the actual Board Orders which we have obtained from the -Public Document Room. Since the page numbers will be at variance between the bound version and the Public Document Room version, we will quote from some of those Orders for the convenience of the Appeal Board.) 5
R .j i ' ' ~ s Further, hhe Licensing Board has done this several times before in . these proceedings- /3/. ' Applicants' have not objected to the Board's doing this and have benefitted Erom it. An additional consideration for the Board must be the adequacy of the -record (see 10 CFR'Part 2, _ Appendix A, V(d)(4) and V(g)(1)), and the Boards -have stated (Board's 10/2/85 Memorandum and Order (Applicants' Motion'for . Modification, Applicants' Exhibit C, page 2): "At the-present time, the way in which management exercised its .. responsibility for the construction of Comanche Peak is relevant -to the compiling of an adequate, record about plant quality. In addition to;the present significance of this information, we will consider the implications for'the safe operation of the plant of whatever weilearn from this' relevant evidence." Ap'plicants take issue with the Boardsi statement at page 11 of-their pleading. _ However, it is clear from a: reading of the Board's Memorandum 4 that. their concerns go straight to the heart of CASE's Contention 5 and issues 'under litigation in these proceedings, and that management's. actions 'are relevant to the compiling of an adequate record about plant quality. (See further ' dis,cussion later herein regarding the scope of Contention-5.) /3/ See, for instance: Board's 7/29/83 Proposed Initial Decision (concerning Aspects of Construction Quality Control, Emergency Planning .and Board Questions)-LPB-83-43, 18 NRC (1983); Board's 2/8/84 Memorandum and Order (Reconsideration Concerning Quality Assurance for Design), item F beginning 'on_ page 13; and Tr.10,337-10,339.- The Board has even allowed Applicants to litigate design / design OA is' sues over' and over again, over CASE's strong objections (see Board's l2/8/84 Memorandum and Order (Reconsideration Concerning Quality Assurance for Design), pages 34 and 35; and 10/29/85 Memorandum and Order (Status of'Pending Motions), second paragraph, page 6, and first full paragraph on page 7. 6
r. c ~\\' . Applicants' statements regarding CASE's having filed contentions on character and competence previously are incorrect. i In their Petition, Applicants state (page 9): "If Contention 5 had.been deemed by its proponents, CASE, to -encompass management' competence and character, CASE would not have ? deemed 11t necessary"twice to attempt, unsuccessfully, to have accepted for-litigation specific contentions with respect to these matters. See CASE Proposed Contention No. 1 in Intervenor's . Supplement to Petition for Leave to Intervene and Contentions (May 7, 1979); CASE's Motion to Add a New Contention (Sept. 14, 1982). ' CASE's actions preclude any assertion that management competence and character 1s encompassed by Contention No. 5." As discussed in the following, Applicants' statements of the record regarding both CASE's Proposed Contention 1 and CASE's 9/14/82 Motion to Add. a New Contention are incorrect. Neither of CASE's proposed contentions concerned competence;-they dealt only with aspects of Applicents' character. CASE's Proposed Contention No. I was one of CASE's initial contentions, which (unlike Contention 5) was not accepted as a contention in the proceedings. The Proposed Contention initially stated /4/: "The applicant cannot be depended upon to adequately protect,1 either.In the normal or the emergency operation of the Comanche Peak nuclear power plant-(CPSES),.the health and safety of the public.and'the indtviduals represented by. CASE, and should therefore not be allowed to opertte the plant." - / 4/ - See: 5/7/79 Supplement.to Petition for Leave to Intervene and Contentions by CASE (Citizens Association for Sound Energy), pages 2 through 9. The bases for~ CASE's Proposed Contention No. I consisted of statements reportedly _made by officials of four environmental protection agencies that Texas Ut111tles is " reluctant to comply with regulations, slow in making corrections,-negligent in reporting violations and uncooperative in supplying data to regulatory agencies"; Texas Utilities' repeated-violations of air and water pollution standards; lawsuits flied against Texas Utilities by the State Attorney General's of fice on behalf of the Texas Air Control Board, the Texas Department of Water Resources, and (continued on next page) 7 )
m. CASE's Proposed Contention No. I was amended and combined with other proposed contentions on 4/10/80 (following discussions with counsel of Applicants and the NRC Staff) to the following wording f5/: " APPLICANT WILL NOT COMPLY WITH REGULATIONS (Includes CASE 5/7/79 Contentions: 1, and 19, items 18 and 19.) The past record of the Applicant clearly demonstrates an unwillingness to voluntarily f4/ (continued from preceding page): .the Texas Parks and Wildlife Department (this included a suit on behalf of the Texas Parks and Wildlife Department which eventually asked for replacement of fish kill of 84% of the fish at Texas Utilities' Martin Lake plant near Tatum, Texas; see additional details regarding this and other lawsuits in: CASE's 4/10/80 Position on Contentions by CASE (Citizens Association for Sound Energy) at pages 9 through 12; CASE's 7/14/80 Motion for Reconsideration of Certain CASE Contentions Denied or Reworded in the Board's Order Subsequent to the Prehearing Conference of April 30, 1980 or in the Alternative Motion for Certification of Contentions Denied in the Board's Order at pages 2 through 4, and 7/14/80 Supplement thereto (filed later the same day) at pages 1 through 6); the reluctance of Texas Utilities to install required pollution control equipment at their lignite plants, which~ necessitated the air control board's having to threaten to go, or acutally going, to court to get the company to install the equipment; once installed, the equipment (according to air control board officials) was either inadequate or not turned on by the company at times); charges reportedly made by the U. S. Environmental Protection Agency'(EPA) that Texas Utilities had committed 18 violations of federal water pollution standards during the winter of 1978-79, that Texas Utilities had failed to report a violation, and EPA's ordering the company to bring the discharges into compliance with standards; and certain actions which had been taken by the Texas Ut111tles in the past which CASE believed were, if not actually illegal, at least highly . questionable (including charges made by Texas Utilities companies to ratepayers which the Public Utility Commission of Texas found to be Improper and in violation of regulations). , Contention No. 1, as originally worded by CASE, was addressed to the operation of the plant. Items 18 and 19 of Proposed Contention No. 19 of CASE's 5/7/79 Contentions were later incorporated into CASE's amended Proposed Contention No. 1 (see 5/7/79 Supplement to Petition for Leave to Intervene and Contentions by CASE (Citizens Association for Sound Energy), pages 50 and 57). /5/ See CASE's 4/10/80 Position on Contentions by CASE (Citizens Association for Sound Energy) at pages 9 through 12. 8
E I e comply with procedures and regulations necessary to assure the . health and ' safety of the public; therefore. the requirements of 10 CFR 50.40 (a, e and d), 50.57(a)(1,2,3 & 6), 50.57(b), 51.20 and ~51.21 have not been met, and a favorable cost / benefit analysis ~^ y' cannot be struck." (Emphasis in the original.) In its Order Subsequent to the Prehearing Conference of April 30, 1980 (June 16, 1980), the Board denied CASE Contention 1, stating (page 9): " CASE contention 1 alleges that the record of Applicant demonstrates an unwillingness to voluntarily comply with procedures and regulations necessary to insure the health and safety of the public. The_ contention is rejected as being too vague and overly broad." Thus, as indicated in the preceding, CASE's proposed Contention 1 did not concern' competence; it dealt-on',' with one aspect of Applicants' character ' It certainly'was not comparable to the character and competence contention as'It is normally thought of today. The contention is Irrelevant to the issues at hand, and the inference drawn by-Applicants (that CASE's attempting to have Proposed Conte'ntion 1 accepted for litigation " preclude [s]-any assertion that management competence and character is encompassed by Contention No. 5") is incorrect. CASE's 9/14/82 Motion to Add a New Contention sought to add a contention regarding aspects of Applicants' character which went beyond those aspects of character and competence of Applicants' management which ~were already covered by Contention 5 (see discussion elsewhere herein). As in the case of proposed Contention 1, this proposed contention did not address competence; it dealt only with Applicants' character. Sp'ecifically, the wording of our proposed New Contention was: " Applicants do not have the character to receive an operating 11cen se for a nuclear plant." J ' 9
~ ?p. a Thus.as:with. CASE's proposed-Contention'1,'our 9/14/82 proposed new \\ contention did.not concern competence; It. concerned only Applicants' 'character. The Licensing, Board did not preclude our being able to pursue ~ aspects of Applicants' character.which were already included in CASE's ~ already-accepted Contention 5. Nor did the Board address CASE's right to - file a proposed new contention on character. and competence at a later time. should subsequent testimony or events warrant'It. The inference drawn by -Applicants (that CASE's attempting to have our 9/14/82 proposed new contention accepted _for litigation " preclude [s] any assertion that management competence and character is encompassed by Contention No. 5") is. Incorrect.- /8/. ~ 4 4 f s. f8/ We note that at the top of page 10 of Applicants' pleading, they state: " CASE's action in trying to assert.a new and separate . contention (regarding character'and competence] is not surprising in light of prior precedent." It is not clear to. CASE whether Applicants are referring to the past proposed contentions which they state that CASE filed regarding ~ character and competence (which are discussed in the prece ing), or. d whether they are referring _to some current action by CASE to assert a . new and separate ~ contention (in which case they are Incorrect, since ~ CASE has filed no proposed new contention regarding character and competence). 11 . m
~' ig Applicants' statement of the issues covered by CASE's Contention 5 is -incorrect. 1 Applicants discuss extensively what they believe is and is not within the scope of CASE's Contention 5 (especially pages 1, 2, 4, 9, 10,'and 11 of Applicants' pleading). For example, at pages 1 and 2 of their pleading, Applicants state, in part: "There remains to be litigated a single contention limited by its terms to the assertion that poor QA/QC and construction practices have raised questions as to the ' adequacy of construction'." (Emphasis added. footnote omitted.) "... applicants, acting under new management, have undertaken a major ef fort by a group known as the Comanche Peak Response Team (CPRT) to verify the adequacy of construction by reinspection.and other approaches." (Emphasis added.) on page 9, Applicants state that "Only one admitted contention remains to-be 11tigated with respect to Comanche Peak and that is Contention No. 5, which reads as follows:" (they then quote the wording of Contention 5). They further state: "This contention, as framed, deals with adequacy -of construction,' not the competence and character of management" (emphasis added). Applicants' statement of the issues covered by CASE's Contention 5 is incorrect for several reasons. First, it should be noted that ACORN flied an 8/29/80 Offer of Proof in ' Support of Its 7/1/80 Motion for Reconsideratton of the QA-0C Contention. In its 8/29/80 Offer of Proof in support of its request that the Licensing Board utilize the wording proposed by ACORN for the QA-0C Contention, ACORN stated, in part: 12 L--
'w .4 1 idl "Thl's offer documents fundamental' problems in the QA/QC program f 'with regard to. lack'of compliance, failure to report-Items of non- ~ ' compliance,' lack of methods of identification and control of .nonconformance, progtam surveillance, procedural deficiencies, storage of electrical components, failure to follow pipe-fabrication procedures, failure to follow equipment maintenance, g ,and.possible damage to the pressurizer. A summary of the I&E Reports on these items is' included as Attachment'A. The actual LI&E Reports are included as Attachment B." Although it denied ACORN's request to change the specific wording of ' Contention-5, in its 10/31/80' rulings 19/, the Board construed Contention 5 -to cover the Inspection'and Enforcement Reports identified by ACORN in its 8/29/8010ffer of Proof. 'In addition, Applicants have-erroneously implied that CASE's Contention '5 applies only to the adequacy of construction. This is incorrect. CASE's ' Contentio'n.5. covers not only. construction but Quality' Assurance / Quality _ Control'(QA/QC) and-design as well. . Quality Assurance, as set forth in 10 CFR Part.50,-Appendix B, is Eithin the scope of CASE's Contention 5. We call the Appeal' Board's attention to the specific wording of Contention 5.. CASE was and is concerned with " Applicants' failure to adhere to the quality assurance / quality control provisions required by the construction permits for Comanche ~ Peak, Units 1 and 2." We were and'are also concerned with " Applicants' failure to adhere to the requirements of Appendix B of 10 r ---
- C.F.R. Part 50." ' We vere and are also concerned with "the construction
. / 9,/ See:-Board's 10/31/80 Rulings on Objections to Board's Order of June [ 16, 1980 and on Miscellaneous Motions, page 5, item (b). s ilt should be noted that ACORN was one of three original 'intervenors, [. all of whom had concerns regarding QA/QC and construction, all of which L -_ e combined by the. Board under one contention (No. 5). w I L l 13 l
'7 practices empl'oyed." This.ls clearly indicated by the wording in Contention 5 which employs the'use of the word "and" which from a linguistic standpoint . basically means that each. referenced concern stands alone and is not dependent upon the oth'ers.(although the cumulative effect must also be ~ considered): "The Applicants' failure to adhere to the quality. assurance / -quality control provisions required _ by the construction permits for Comanche Peak, Units 1 and 2, and the requirements of Appendix 'B of 10 C.F.R. Part 50, and the construction practices employed. .,have raised substantial questions as to the adequacy of the -construction of the facility... " - (Emphases added.) Thus, Quality Assurance, as set-forth in 10 CFR Part 50, Appendix B, Is.wlthin;the scope.of CASE's Contention 5. The importance of QA/QC is well recognized.- A proper QA/QC program which has been properly implemented .during the construction phase is essential to provide the required x reasonable assurance that the plant has been designed and constructed properly. There is no authorized substitute for' compliance with the requirements of' Appendix B. Design and design QA are also a part of CASE's Contention 5 and are specifically recognized issues in-these proceedings. In addition to their 'being covered under 10 CFR Part 50,' Appendix B (as well as undcr construction /10/), design 'Itself has been a specific admitted issue in these proceedings since July 1982 when CASE Witness Mark Walsh was allowed /10/ Applicants' statements do not indicate that they recognize that design is an11ssue in theca proceedings, that design is supposed to be an integral-and necessary part of, and basis for, construction, or that inadequate construction can result not only from faulty or inadequate construction practices but also from faulty or inaaequate designs, design practices, or QA/QC for design. 14
,s to testify following a limited appearance statement (Tr. 3073-3198); he also testified in September 1982 (Tr. 3611-3619). The testimony of CASE Witness Jack Doyle in September 19,82 (Tr. 3622-4013 and 4705-4761) supported and expanded upon the testimony of Mark Walsh. The issues raised by these two former Comanche Peak engineers have come to be generally known as the Walsh/Doyle allegations. There is no doubt that design and design QA'are'now (and have been for over three years) eni issue in these proceedings. As specifically stated in the Licensing Board's'12/28/83 Memorandum and Order (Quality Assurance for Design): "This contention [No. 5] is very broadly worded and has been broadly interpreted by the Board /9/. We have interpreted it to apply-to quality assurance for design of Comanche Peak and also have permitted CASE to raise questions concerning particular design deficleacles alleged not to have been caught by the design control program." "/ 9,/ Tr. 714." -- top of page 8 "... the failure to provide logical explanations for several of their.[Walsh/Doyle] allegations raises questions about the-L adequocy of design of the entire plant." -- first paragraph of page 2 "... Appendix B requires that the process for correcting errors be reasonably prompt. Waiting until the end of the design process does not satisfy-this requirement. There should be quality assurance for design as part of the iterative process, not just a QA inspection of construction..." -- top of page 21 "We consider the absence of a program to correct design deficiencies promptly to be a serious deficiency. -- bottom of page 70, continued top of page 71 The recognition of design and design rgA as accepted issues in this proceedtng has continued, as demonstrated by the following: 15
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- In the Licensing Board's 3/15/64 Memorandum'(Clarification of Open<
Issues)'which' discussed which. issues'were open and closed at that ~ ftime, the following-was-listed as an open issue-in these -proceedings ~(page 20): /"PP. Walsh/Doyle Allegations J "Now also' referred to as Design Decision allegations, i -since the Board shares many of these concerns. Obviously a continuing,'11tigable concern." 4 ~ t,
- Inithe Boards' 10/2/85 Memorandum and Order (Applicants' Motion for Modification) (Exh bit"C to Applicants'. pleading), it is stated (page 4)
!)* "SinceAppIldantsl ha've withdrawn their summary disposition t" motions, we will not act'on those motions.- [ Footnote \\omitted.] ^ ,A, . Typically, when a. motion is withdrawn it becomes' moot.
- However, f the submission of )these summary disposition documents may reflect j
..on management's ability to understand and control the quality of-design /3/. f The affidavits were submitted for our f ormal . consideration.'ITo the extent that the evidence was incomplete,or l misleading,'we still expect Applicants to fulfill their-obligation. to correct our record.- If.necessary, they should explain the. freason for~the incomplete or misleading affidavits. k. "/3/ We note that our December 1983 Memorandum and Order,- LBP ~~~ 81, 18 NRC 1410 a't-14 concluded, in part, that '[T]he record before us.c doubt on the design quality of -Comanche Peak, both because applicant has failed to adopt a system-to correct design deficiencies and because our record Et x is devold of'a satisfactory explanation for several design' questions l raised by intervenors.' Nothing' subsequently ' presented to us, up to this-time,=has detracted from this conclusion." (Emphasis added.)- ( i ar EAndfintheBoards' 10/29/85 MemorandumLand Order, the Board stated, ~ ig. .in part'(pages 6 and 7): r s s "This' Board heard inadequate proof of design adequacy. It then received Summary Dispositions [by Applicants] that have been withdrawn. RSo ve are now on:the tyttd Iteration concerning design." ake 4 "We are-In the advanced stages of a complex case in which ( Applicants have already lost op the merits on one occasion and have attempted to withdraw their summary disposition motions on a second occasion." 16 s tu
[ ( .f-It should be noted that, to date, Applicants have not acknowledged that there was anything wrong _or even questionable in either the testimony of -their witnesses or the affidavits of their affiants (technically or otherwise).- However, Applicants have now stated that they will file with the Licensing Board material concerning two topics: (1) the r representativeness of U-bolt support configurations employed in Applicants' tests and (2) corrections to applicants' affidavits supporting the motions for summary disposition regarding piping and support design (see Applicants' 10/25/85 letter to the Licensing Board, which is included as Attachment I hereto). 'In the Licensing Boards' 10/29/85 Memorandum and Order (Status of Pending Motions),' the Boards stated (page 1): "One issue we are'not acting on is TEXAS UTILITIES ELECTRIC COMPANY, et al.'s (Applicant's) ' Motion for Reconsideration of Licensing Board's Memorandum (Reopening Discovery; Misleading Statement', January 7, 1985. We are permitting Applicants up to two more weeks within which to file additional Information that we have been expecting since January." The importance of these matters is underscored by the Licensing Boards' statements (although not in all instances addressed specifically to design / design.QA) in their 10/2/85 Memorandum and Order (Applicants' Motion for Modification) (Exhibit C to Applicants' pleading): "The assessment of plant quality is a complex matter. There are allegations of a pattern of construction and design deficiencies. A determination concerning how management has exercised its responsibility for the quality of design and construction and the adequacy of QA/0C would, at the very least, affect the necessary scope and intensity of review, including sample sizes." (Emphases added.) - pages 1 and 2 "In assessing the sigalficance of QA/QC deficiencies and the remedies that might be appropriate with respect to such deficiencies, we would be concerned were we to conclude that present management has difficulty assessing and learning from 18 1 i
kU 7 management's previous errors.- Consequently, should car'efulness be missing from Applicants' studies of its own management. behavior (or should Applicants fall to develop an adequate understanding of-its own behavior), we would consider the implications of that lack of concern." (Footno.te omitted;-first emphasis added,'se,cond emphasis in the original.) - page,3 s Clearly these concerns of the Licensing
- Boards are relevant and material to the.lssues which are, quite properly, already in litigation in
~ Yi s. .i Indeed,giv'en'the,currentstate'of[therecord(notto these proceedings. .t-( mention Information such as the Staff'd recent Supplemental Safety Evaluation Reports (especially No.;11) which will undoubtedly be placed into g-the' record at some point'in time), the Boardswould be remiss in their responsibility were they to ignore these matters. i t Competence and aspects of character are already included in this case. In their pleading (especially pages 4, 6, and 15), Applicants argue. ~ that'there is no admitted contention in these proceedings _regarding character and competence, that character and competence are outside the scopeofissuesalreadyinthese-proceedings,anbthattheLicensingBoard cannot gather evidence regarding'hharacter and competence /11/. They are primarily concerned with character and competence as it applies to Applicants' management.. ( ~ % /11/ CASE notes that Applicants' conclusion at theitop of page 11 of their pl'eading that "The Licensing Boards here involved. '. (. appear to acknowledge that Contention No. 5 does not carry with,1,r any contention y as to management character or' competence" is totally without basis; the Boards have stated no such thing, and (as discussed in this pleading) 'such is not the case. 19 n ~ m n,
t. Competence (including competence of Applicants' management) is now, and L has always been, within the scope of CASE's Contention 5; it is also covered-under' design / design QA. (As discussed elsewhere herein, contrary to Applicants' assertion, CASE has never attempted to' file a new contention about competence, either separately or as part of a proposed new character o ~ and Lcompetence contention; it has never been necessary to do so, because the issue is al, ready covered.) In addition, certain aspects of Applicants' character (although not set forth in a specific separate contention) are already included in this case /12/. More specifically, management's character and competence is already ' covered under Contention 5 because of the wording in 10 CFR Part 50, Apperdix B, which is an important part.of CASE's Contention 5. For example, Criterion 1. Organization of Append 1x B states, in part: "The applicaat shall be responsible for the establishment and execution of the quality assurance program. The applicant may ' delegate to others, such as contractors, agents, or consultants, Lthe work of establishing and executing the quality assurance program, or any part'thereof, but shall retain responsibility therefor." (Emphases added; footnote omitted.) Management must bear the ultimate responsibility for the conditions (in regard to both construction and design) which led to CASE's concerns as set forth in Contention 5. Th'is is clearly already covered under that portion of Contention 5 which refers to " Applicants'. failure to adhere to the /12/ Further, the credibility of witnesses and affiants is intimately and Inseparably tled to management's character and competence; and credibility.has clearly been and will continue to be a litigable aspect of these proceedings. This will be discussed in more detail later herein. 20 -a_-----,----_.------._---------a-u--_------.-
p- '8-F quality assurance / quality control provisions required by the construction permits'for Comanche Peak, Unit I and 2, and the requirements of Appendix B of 10 C.F.R. Part 50." Management's character and competence is also covered under Contention 5 because of the wording in 10 CFR Part 50, Appendix B, II. Quality Assurance Program, which states, in part: '" Activities.affecting' quality shall be accomplished under suitably controlled conditions. .-[which] include.... assurance that all prerequisites for the given activity have been satisfied. The program shall take into account the. . skills to attain the required quality... The applicant shall regularly review the status and adequacy of the quality assurance program.- Management of other organizations participating in the quality assurance program shall regularly review the status and adequacy of that part of the quality assurance program which they are executing." (Emphases added.) One of the prerequisites is that the people doing the job must be competent (possess the skills necessary to attain the required quality), and this applies to construction, design, QA/QC, and all other activities affecting quality. This includes management in at least three ways: (1) If management selected incompetent people; (2) If the management which selected 'I -incompetent people is the same management which will be selecting the people who will replace the incompetent people; and (3) If management itself lacks competence to manage and supervise the activity of even competent people. If management selected incompetent people, it becomes import' ant to find such things as how and why this could have happened. If that same out management will be selecting the people who will replace the incompetent people, it then becomes important to find out such things as whether or not that same management has used a criteria for selection which makes it 21 lL:
l-. . (., " f 4 w a: IAsystate'Ld in Criterion XVI of Appendix B, conditions adverse to quality' be promptly identified and corrected; the root cause of significant must conditions adverse to quality:must also be determined and corrective action taken.to preclude repetition. _Such corrective action must go to'whatever ilevel is necessary '(whether it be at the craf ts level or upper management
- 1evel),
a If management has been slow to Idhntify and ' correct conditions adverse .to quality, if they have been siow to identify the root cause 'of significant p conditions adverse-to quality, lf they have been slow to take corrective action to preclude repetition of'such significant conditions,-if they have t '.been? slow to replace incompetent' people, this is a reflection on , management's own competence (and perhaps character).- . k f g 2,
- Both management's character and competence are also specifically included in the design issues in these proceedings, regarding not only quality assurance for design but the design itself (both of which arel covered under th,e requirements of 10 CFR Part 50, Appendix B) /13/. An s;
integral part of;the design /designLQA issues raised by CASE Witnesses Mark ~ 's - Walsh and Jack Doyle (the-Walsh/Doyle allegations) has been not only that the whole technical program was improperly produced so that the hardware will not properly perform, but that there was bad technical engineering. judgement and lack of competence from the beginning. /13/ See CASE's.8/22/83 Proposed Findings of Fact and Conclusions of Law (Walsh/Doyle Allegations), especially Sections: XIX. Errors in Equations That Are Intended 1N) Justify A Posttlon Generically; XXV. l ' Lack of Quality Control for Engineering at Comanche Peak; XXVII. ? Credibility and/or Competence of Witnesses, pages XXVII - I through - r .29; and XXX. Summary of Conclusions'and Recommendations. 23 0 v
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The. importance of competence in regard to design is. obvious and was tunderscored recently in dictum in Consumers Power Company (Midland-Plant, Units 1 and 2), LBP-85-2,. January 29, 1985 (if the design is inadequate, -however,Lthe. sufficiency.of implementation becomes irrelevant).- The ~
- Importance of competence in regard to design at Comanche Peak was discussed by the Licensing Board in its-12/28/83 Memorandum and~0rder
'(Quality Assurance for Design) (page 30): J " Applicant.and staff would have us decide thatfapplicant's. 1 stability-reassessment program will resolve the stability problem, but we are unable to accept.this suggestion.. The program's procedures have not been presented to the Board and the program 'Is.in the control of the ' highly quallfled' engineers'who were responsible for the review of others whose work has been characterized by applicant and staff as 'somewhat knowledgeable' -and 'somewhat' Inexperienced.' /81/ Although these individuals are undoubtedly. qualified, competent. engineers, we are not content to relyientirely on their work to correct problems that have arisen under'their supervision and control." (Emphases added.) "/81/. Tr. 7167-69 ([ Applicants'] Vega and Finneran); Tr. 4962-4965._([ Applicants'] Mr. Finneran; Tr. 6406-([ Staff's] Mr. -Taylor." During the, course of the proceedings.themselves, other aspects of Applicants' character have evolved - as issues (primarily because Applicants' witnesses or affiants on design / design QA have made what CASE believes are ' misleading staten:ents'and perhaps material false statements). The aspects'of the character and competence of Applicants' management '?' regarding which Applicants are concerned in their Petition (page 14) are included' under CAsc* s Contention 5 because they are a logical and natural extension of the QA/0C and/or technical issues in these proceedings and ilnquiry regarding those aspects is necessary to a complete and accurate 24 - -. - ~
A, record in this case. Further, these aspects are included because they are relevant and. material to the credibility of Applicants' witnesses and affiants in these proceedings (regarding which the Licensing Board will obviously have to make a determination). ~ On page 14, Applicants quote specific comments from the Licensing Boards' 8/29/85. Memorandum in support of-what the Applicants see as "the Boards. . acting.on the basis that they are vested with a roving commission to investigate possible wrongdoing in the prior conduct of this litigation." In each of the quoted' instances, the Licensing Boards' concerns were brought about by specific actions of the Applicants themselves (in all Instances except (b), in testimony or affidavits before the Board). Regarding design issues, this was indirectly addressed, in part, by the Licensing Board in its 10/29/35 Memorandum and Order (Status c2 Pen' ding Motions), pages 6 and 7 (which is quoted on the bottom of page 16 herein) /14/. Clearly these maitters are already included in the scope litigable ' issues.. The Board is merely putting Applicants on notice of their concerns regarding matters which are quite properly already included in these proceedings. /14/ Applicants' request to withdraw their summary disposition motions has not yet officially been ruled upon by the Licensing Board, pending receipt of filings by the NRC Staff and the Applicants on one specific point. See also discussion at pages 18 and 19 of this pleading. 25
j ' - I I i .Thus,.as-demonstrated herein, Applicants' statement of the~1ssues covered under CASE's. Contention'5 is incorrect. Quality assurance / quality ' control, design and design OA, competence, and aspects of character are Jalready included as issues'in these proceedings.under CASE's Contention 5 [and under-design / design OA. In addition, the credibility of witnesses and affiants is intimately .and inseparably tied to management's character and' competence; and credibility (as will be discussed later herein) has clearly been and will continue to be a 11tigable aspect of these proceedings. 9 O O 6 h ' 26 4 -m. .m
4,; 'L,, ~ Credibility:is 'an' issue 'in these proceedings; in addition, the' Licensing Board must determine the credibility of each witness or affiant-in order to arrive at a reasoned decision. -Applicants,.on page 15.of'their pleadlug, make the following statement- ~ "If;the Boards are suggesting that' the applicants personnel have l engaged'in impropriecles in the conduct of this litigation its role is to refer.its suspicions to the appropriate authority or forum of the; Commission. The Office of Investigations-(0-1) is the~ body to investigate wrongdoing of' applicants and licensees. In an operating license proceeding with no contention admitted as -to character or competence of management,:a Licensing Board, a creature of llmited jurisdiction restricted to the contested issues committed'to it by the notice creating it, e.g., Public Service Company of Indiana (Marble' Hill Nuclear Generating Station,-Units 1 and 2), ALAB-316, 3 NRC 167, 170 (1976); 10 CFR paragraph-2.760a, has no business engaging in activities that are (the' proper function of 0-1, at least without officially declaring a sua sponte issue and giving the Commission the opportunity to decide for itself whether this is a proper function of one or both of-these.two Boards." Applicants also argue (page 14) that "the Boards are acting on the lbasis that they are vested with a roving commission to inve'stigate possible . wrongdoing in the prior conduct of this litigation." Possible wrongdoing In the prior conduct of this litigation is directly related to credibility, which is certainly within the authority of the Boards to determine. As addressed previously herein, Applicants' concept of the scope of admitted ~1ssues in-these proceedings is incorrect to begin with. Competence. (of management or others) is_ (and always has been) within the scope of the admittedEcontention and design / design QA. Aspects of character are also within the scope of'the admitted contention and design / design OA. Applicants also appear to be arguing, however, that it is improper for a Licensing Board to determine whether or not the witnesses and affiants who come before it are credible witnesses. This is obviously incorrect. 27
E L' - '? ,s4 The ' dea that the Licensing Board must go to 01 to determine the i . credibility of. Applicants is. indefensible on its face. Were the NRC administrative law system set up in such a manner, extensive delays would int'erfere'with the Licensing Boards being able to perform'their work and make~their determinations'as to whether or not an operating license should be issued. The Licensing-Board,must make a determination of'the credibility of each1 witness or. affiant who-presents evidence before it. This is necessary in order for the Board to make a reasoned decision and' assure an adequate and complete record. ~ The consideration of credibility and competence in the framework of the hearings process is a necessary part of evaluating the ev12ence and-determining the persuasiveness of the witnesses and their. testimony. Clearly the Licensing Board has the right, responsibility, and authority to:. determine the persuasiveness and/or credibility of each witness (including those who happen to be ' management) who swears to material ' facts in these proceedings; determine whether or not a witness is lying or telling the truth in proceedings before the Board; determine 'the relative weight of.each witness's testimony, based on the credibility of that witness's testimony, and weigh the evidence. The Licensing Boards cannot and do not 'have to rely on OI to do their job for them. Boards must make their own determinations regarding the credibility of witnesses and affiants who present evidence before them. They heard the witnesses; they saw the evidence. The Boards have the authority within themselves to take actions if the case being put on by the Applicants is put on in a misleading or incomplete way. 3 28
e 'i c =- r y ~ ^ y_ _ g; v .g / .n 's The-Board's are~ fully capable of determining at what point and under. <wh'atocircumstances-they should properly turn information over to'01.. It
- should ' be~ noted that the. Board has,. when. it felt. the ' occasion called for. it,-
o . requested that OI investigate whether or'not Applicants made a material' . false 1 statement 1n-regard to the representativeness-of Applicants' sample of ' cinched down U-bolt: supports /15/. In that instance, 01 made:the. [ ' determination that'a material false statement had not.been made. However, p 7 -Mr.1Noonan.also-stated /16/: ~ "Having discussed'the matter with.the Staff reviewers, we conclude ~ ;that Applicants'"fallure to disclose the-fact that the ' random ~ study'Ecited by Applicants to be.' representative' of all U-bolts -atJComanche Peak could have' misled the Staff into believing that 'the. cited ' random; study' included sufficient U-bolts In Unit ~1 to . permit a direct inference'that U-bolts in Unit I were.not -overstressed.' That.the Staff was not misled into relying on Applicants' representations can be attributed to the fact that the Staff's analysisLand review of this particular summary disposition notion was'not near. completion when the underlying raw data . requested by the-L'icensing Board was provided by Applicants. After assessing the Applicants representations made prior to the disclosure, we conclude that.the F-11ure to disclose that the ' random study'iwas limited to Unit _2,1even though the study sas >3r ' l submitted for the purpose of justifying conditions in both Units 1 and 2, was,a-significant omission of material fact which could have misled the Staff.in-its review of Applicants' U-Bolt Summary Disposition Motion and the accompanying affidavit."- (Emphases in the original.)' This wasione of the statements which CASE believes was a material false statement',' contained in' Applicants'; summary disposition filings which they ~ /15/ See 8/20/85.Hemorandum to Commissioners from Vincent S. Noonan, NRC Director for; Comanche Peak Project, re: Board Notification - Staff's Determination of' Applicants Potential Material False Statement on U-Bolt Sample (Board Notification No. 85-077), and attachments. t See'also discussion of this matter at page 18 herein. /16/ Page-2'of Enclosure 1 to the 8/20/85 Memorandum to Commissioners from Mr. Noonan.. 29
ir-_ -- I T 1,, have now: attempted to withdraw -- the same summary disposition filings referred to in the quoted portion, item (c), of the Boards' 8/29/85-Memorandum with which Applicants are concerned at page 14 of their pleading. Each ofI hose' quoted items, at a minimum, has a bearing on Applicants' t 4 - credibility. Some may contain the seeds of potentially material false statements made directly to the Licensing Boards in these proceedings. The Boards cannot ignore this (see Consumers Power,17 NRC 69, 70 (1983) (Board cannot ignore material false statements); see also Commission ruling, 12 NRC 281 CLI-80-32 (September.22,1980), page 291, note 4). They certainly have the power to say something about it. If the extent and importance of material dalse statements is great enough, the Board could possibly deny a license on the basis that the case presented by the Applicants was based on material false ~ statements, and that the NRC therefore cannot depend on them. Here, the Licensing Boards are following the guidance of 10 CFR 2.760a. They are not acting hastily, without sufficient evidence of wrongdoing. They did not bri.ng up the matter of a sua sponte issue; the Applicants did /17/. Obviously the Boards did not consider that there was sufficient information before them to declare a sua sponte issue. In their 8/29/85 Memorandum, the Boards did not say that they were about to declare a sua sponte issue. But when Applicants brought the matter up in their 9/25/85 pleading, the Board addressed how a sua sponte issue might be raised, when the Boards believed it was warranted (i.e., "when the evidence suggests the /17/ See pages 7 and 8 of Applicants' 9/25/85 Memorandum in Support of Motion for Modification With Respect to the Boards' Memorandum of August 29'1985 (Proposal for Governance of This Case) (Exhibit B-2 to Applicants' pleading). 30
.n ; = - i c. + necessity for our doing so"). The Boards then again patiently explained- /18/: "Our unwillingness to act on' suspicion is tempered by our awareness-that in complex litigacion it may be proper to discuss our views, in a preliminary and non-binding manner, in order to assist the parties in anticipating their evidentiary needs. This ~ can. avoid the extensive delay that might arise if our views came as a surprise to a party later in the litigation. Hence, we prefer to put the parties on notice of our preliminary views -- providing them with a fair opportunity to assemble and present
- relevant evidence." (Emphases added.)
In so doing, the Boards are taking the same path that the Commission took In the South Texas proceedings-(CL1-80-32); they are looking at the issue of the credibility and' competence of Applicants management because .the evidence-In these proceedings (regarding duly accepted and litigable issues) is leading them down'that path. At this point in time, the Boards are= not prejudging where that path will lead. They are bending over-backwards to. afford Applicants every possible opportunity to correct their testimony and affidavits, thereby possibly avoiding later findings that Applicants have made material false statements. In addition to the preceding, it is important to note that credibility -is now, and always has-been, an issue in these proceedings. During the July 1982 Comanche Peak hearings, then-Licensing Board Chairman Miller stated (Tr. 2734): ~ " Credibility is always an issue regardless of the scope of direct examination. There can be no question that when credibility questions arise, for taking a matter such as a significant issue ~ like this, the Board is entitled to full Information without any games being played. /18/ 8/29/85 Boards Memorandum at page 2 (Exhibit C to Applicants' pleading). 31
__, m.m ~. - 4 7 In the. Board's 3/15/84' Memorandum (Clarification of'Open Issues), the l Board stated-(page:20):- "QQ. Credibility of Witnesses '"Not a' separate issue. Implicit in pending Issues." (Emphasis .added.) Thus, the Board recognized that, although' credibility is not a separate issue-in and~of-Itself, it is nonetheless an issue for consideration in 'these' proceedings and is an integral part.of all pending issues (which' , precludes. CASE's having to have a separate contentlan=regarding it). Credibility-has also been an important 'ss agarding the design / design QA issues /19/.. -The Board's 12/18/84 Memorandum (Concerning Welding Issues), LBP-84-54, -.was based in very large part on credibility. In that instance, Applicants - did -_not object to the Board's making determinations regarding credibility. ~ Throughout these proceedings, as the case evolved, both character and competence have been included as litigable issues insofar as they apply to construction, design, and QA/QC issues (which are already included as.part of CASE's: Contention'.5); this can be seen by the following Board Orders: Board's 7/6/83 Memorandum and order (Collateral Estoppel; Atchison Case), in which the Board adopted the ruling of the U. S. Secretary of Labor in the Charles A. Atchison case (see especially pages 4 and 5). . Board's 7/29/83 Proposed Initial Decision (Concerning aspects of construction quality control, emergency planning and Board l /19/ See CASE's 8/22/83 Proposed Findings of Fact and Conclusions of Law (Walsh/Doyle Allegations),,Section XXVII. Cred1111ty and/or Compettnce 'of Witnesses, pages XXVII -1 through -51. l 32
W ': q,. 7; tt y 7 3' ^"f Q ' [ 7 m T om L-i
- questions),21nEwhich the Board specifically left'open the
- Issue of management's commitment'to quality assurance and the quality control: progran- (Order ~ at t. bottom -of page 21 continued top of page
- 22; page;22,. first; and second paragraphs; page 28, first full
. paragraph;fand'page 41, first and second full paragraphs. Board's'9/25/83:Memorandumand-Order (EmergencyPlanning. Specific- ' Quality Assurance Issues and Board. Issues).(see especially pages 14-20, 23,and 38).wherein'the Board stated-that."we consider the grounds for-Edismissal'[of Mr. Hamilton) to be pretextual" (page 19, emphasis 7.added),:and found.that Applicants had made a material false-statement -In their FSAR,'Lof which the Board stated "we may consider this event. subsequently" (page 38,_ emphasis added). ' Board'sl10/25/83 Memorandum and Order ~(Reconsideration of Order of ~ Sept, ember 23, 1983)-(see especially pages 3 through 9,.11 and 12), wherein'the Board stated "we consider that a-preponderance of the evidence shows that Mr. Hamilton's aggressive concern for quality ' assurance was'part of the reason he was discharged".(page 7, emphasis .added); they further stated "Although our use of applicant's definition of-misrepresentation to' analyze the cited FSAR section does not correct .our initial impression about this issue. . we; consider any possible misrepresentation to be a technical matter that has no influence on 'the : -license application and is therefore beyond our -jurisdiction" (page 12,- - footnote. omitted, emphasis added). cBoard's.10/25/83' Memorandum'(Procedure Concerning Quality- . Assurance), wherein the-Board ordered the parties to index those portions'of'the record dealing with charges of intimidation of quality assurance or craft personnel. Board's 12/28/83. Memorandum and Order (Scheduling Matters), in which1the' Board specifically stated (page'4, item lll): y. " CASE shall-have the opportunity. ~ . to'present testimony-concerning its allegations of intimidation of quality assurance and craf t." = (Emphasis added.)-
- Board's 1/3/84 Memorandum and Order (Additional Sche'duling Order),
which-stated, regarding'the issue of intimidation (pages 5 and 6, item VI): "After considering the filings of the parties (and the 131 camera,.ex parte, representations made to us by the Office of Investigations... ) on the seriousness of -the pending charges, we have concluded that some of the , charges will require hearings... If, however, the Intimidation may be shown to be sufficiently serious, then.it may reflect on the quality of plant management. Furthermore, serious intimidation could result in hidden plant l conditions that are not readily inspected on 's 33
n i V ~ a: s walkdowns..Elther.of.these possiblenconclusions-e concerning-intimidation allegations would have serious. adverse Implications for licensing."'L(Emphasisfadde'd.) ,\\f,'*
- (See'also: Lpages l'and 2,-ites I; and-pages 3 and 4, item IV.)
Board's.3/15/84: Memorandum (Clarification'of Open Issues).
- especially where.the Board stated'(pages 4 and 5)
~ "Before these hearings are concluded, the parties and-l the Board will face their hardest-task:-assembling'the kaleidoscope of facts into meaningful overall
- conclusions about the' safety of the physical plant and the adequacy-of management of the design and construction process. Although we are litigating many subissues, that should not obscure the overall licensing concerns from view.-
Our clarification of the subissues does not remove these overall concerns from the proceeding, and we foresee the possibility that some . evidentiary hearing sessions will be needed to resolve these more global issues.- '~ "Let us also caution the parties that should important new safety concerns:or allegations,' relevant to this
- contention, come to light, they will be admitted for consideration by this~ Board. Furthermore, the trial of some lssues may reveal Interrelationships among tssues or may give rise to new issues, and those implications may Tequire exploration."' (Emphases added.)
Se<s "also : pages 13 and 14, item V; page 18,-Items GG and HH; page 12(, item 00. ~ In conclusion, as discussed herein, if the Licensing Board believes - :that - in order to adequately resolve the issues properl'y raised by CASE in s these proceedings -- It is necessary to explore the evidence or questions surrounding such issues that arise as part of a witness's testimony or affidavits before the Board, the Board is fully within its rights to do so. 1Further,, if there are any questions regarding the credibility of such 1 34
A e. testimony or affidavits, the Board has the responsibility to take whatever steps are necessary to provide a complete record. The Board thus has the authority to request additional Information from Applicants regarding their past conduct in this litigation. If such past conduct involves areas which could potentially result in a denial of the operating license, it then becomes a necessity to pursue the matter more fully. The issue of character (whether alone or termed " character and competence") as a separate specific contention, which in and of itself could be the basis for denial of an operating license whether or not serious construction or design deficiencies were identified /20/, comes up to some extentwhInthereissufficientevidencetoraiseit. At this point in time, the Licensing Boards apparently do not believe that the time is ripe for such a separate specific sua sponte contention /21/. However, it is, proper and necessary to continue (as we have for years in these proceedings, with the full knowledge of the Applicants) to probe the root cause and generic 1mpilcations of identified problems in design, construction, and QA/QC (whether such cause is at the crafts level or the management level). It is also proper and necessary to continue (as we have /20/ 10 CFR 50.100 states, in part: "A license or construction permit may be revoked, suspended, or modified, in whole or in part, for any material false statement in the application for license or in the supplemental or other statement of fact required of the applicant /21/ It appears obvious to CASE that the Boards want to wait and see how Applicants' new management (which will be discussed in more detail later herein) responds to the Boards' stated concerns, to see whether or not the new management has learned from the mistakes of past management, to see whether or not new management will take adequate corrective action, and to see whether or not new management has the same attitude and mindset as past management. 35
P y,) -forl years, with Applicants' knowledge) to attempt to" determine the ~ credibilityjand competence of witnesses and affiants in these proceedings. n Applicants'. management.ls not. immune from such considerations simply because l , they? bear' the title 1" management" or because there is not a separate specific . contention entitled " Character'and Competence." J .In the meantime, the Licensing' Boards (quite properly) are putting I: l ~ Applicants 'on notice that -- because of what the Boards have seen and heard at ~ in these proceedings -- they tentatively, preliminarily, and ' non-bindingly believe thiere:Is perhaps the possibility that,f at. some point in the future, 'thef ssue.of character and competence may be specifically raised as a sua i V l sponte issu'e by the Boards. Whether or not it ls, CASE believes, depends l ilargely.upon the responsiveness of Applicants' current management; if the [ !same past-attitude and mindset prevails, it may well be that a separate L l specific issue'on character-(by whatever name, and whether or not coupled with' competence) will be raised sua sponte by the Licensing Boards. -It-1s also' clear that character and competence can become an issue whenever~1t arises. Once there is evidence of questionable character, the" Boards then must consider the character issue. Such consideration is ,= 1 l ' mandated by the. Atomic Energy Act of 1954, as amended, 42 U.S.C. Section-2232a, which states in relevant part: "Each application for'a license hereunder shall... specifically state such information as the-Commission, by rule or regulation,. may-determine to'be necessary to decide... the character of the -applicants... as the Commission may deem appropriate for the license. . " ~ Such' consideration ls further mandated by 10 CFR 50.40(c) which L-l states: 36
w+ .. e ? "In. determining that a 11 cense will be issued to an applicant, the Commission will be guided by the following considerations: "...-(c) The issuance of a license to the applicant will not, in the' opinion of.the Commission, be inimical to the =.... health and safety of the public." See a!so 10'CFR 50.57(a)(1,2,3,4,&6), 50.34(a)(6), 50.34(a)(9), 50.36(c)(5), and 50.40. -Thus, whenever the Licensing Boards see evidence that there is a lack of competence or a lack of good character, they'have the statutory annd regulatory obligation to do something about it whenever they find out about it. The Licensing Boards are taking the next logical step in making their determination as to whether or not there is the need to declare a sua sponte issue. One final statement of Applicants needs to be addressed. Applicants appear (in their Conclusion on pages 16 and 17) to be requesting that the Appeal Board order the Licensing Boards to cease permitting consideration of Issues which are properly being (and have been for years) litigated in these proceedings. To' the extent that this '.s what Applicants are requesting, - such request is.1mproper and without foundation. Further, it is untimely by from ten months to over three years /22/. Applicants'- Petition should be denied. /22/ For one specific example, see our discussion on page 18 herein. To the extent that Applicants are requesting that the Appeal Board order the Licensing Boards.to cease permitting consideration of the matters raised in the Licensing Board's 12/18/84 Memorandum (Reopening Discovery; Misleading Statement) or statements contained in Applicants' affidavits supporting the motions for summary disposition regarding piping and support design, Applicants are untimely (too late) by over ten months. 37 I L
g- 'g. 1 Applicants' statement that "the Board has left'the Applicants in the position where they do not know what is or is not to be. litigated" is { incorrect. Applicants state (page 8 of their pleading): - "Here the difficulty is not that the Board has set matters for litigation that counsel feel should not be litigated or ruled out matters that counsel feel should be in; rather as will appear. below, the Board has left the applicants in the position where they do not know what is or is not to be litigated." (Emphasis added.) s As demonstrated in some detail.in the preceding (pages 7 through 37), Applicants should be well aware of the issues which are being litigated in - these proceedings. Applicants have been on notice for years that credibility of witnesses and affiants, competence, and those aspects of character of Applicants (including management) insofar as they cre covered under CASE's Contention 5 (including QA/QC, construction, and design), are being litigated in these proceedings. 1 ~ It.is also noteworthy that many of these issues are the same issues regarding which the Licensing Board stated some twenty months ago in its 2/8/84 Memorandum and Order (Reconsideration Concerning Quality Assurance for Design): " Applicant requests that we revise our Design Decision so that we make it clear that "'the evidentiary record is presently not adequate to determine whether Applicant's pipe support s' sign. process' satisfies Appendix B (a view which Applicant shares) and that further' evidence will be required.'" [ Footnote omitted.] " Applicant's concern arises because it feels that it did not have adequate notice that this matter was being litigated and because we incorrectly interpreted Applicant's Findings. We disagree." (Emphasis added.) pages 1 and 2 38 f y ,ve- ,ww . - + - ,,.,,v.y.. .,,,ww--,,,,-w--,.,-y,,,,.,,e..-,r-.--, ,,, - -.,,, -pe-,w-- ,,y, , - ---+, ,r..-,-- - w- - w-,%
.w. a - S2 ~ '"It is difficult for us to sympathize with Applicant's surprise -that'Its compliance with Appendix B was being litigated. The contention being litigated is a quality assurance contention and the Walsh/Doyle design concerns were admitted as a portion of that broad contention. Furthermore, these specific-concerns about quality assurance for design were covered by Chapter XXV in CASE's-FindingsLand Applicant.had an opportunity to respond to those . findings'"-'(Emphasis;added.) -- page 7 _In its 12/28/83' Memorandum and-Order (Quality Assurance for Design), the Licensing Board stated, in part (pages 71 and 72): "It may well'be that the absence of proof.that would satisfy this Board was a consequence of a litigation strategy that relled on applicant's ability to persuade this Board to accept the testimony of applicant and staff witnesses because of their more impressive credentials." e f 9 6 39 a
o;7' .w - Applicants have failed to show that they have been -harmed or that the Boards' actions which are at issue have affected the basic structure of the proceeding in a pervasive or unusual manner. ~ At page 7 of their pleading, Applicants state that "The petition at bar Invokes.-. ~. the second of the two Marble Hill criteria" (that 'the Licensing Board ruling under attack" affects the basic structure of the proceeding in a persuasive or unusual manner /24/). And at page 15, they state: "There can be no doubt that the conduct complained of herein ' affect (s] the basic structure of [this] proceeding in a pervasive or unusual manner.' As things now stand, the applicants are to try their case, put in the evidence, rest, and then be told what the final list of issues is. This is not simply a lack of due process; it is a lack of any process. No one can litigate the unknown or secret contention." However, as demonstrated in the preceding pages herein, the Boards' statements (which do not constitute an order) which are at issue do not affect the basic structure of the proceeding in a persuasive or unusual manner, because -- In all instances -- they merely continue the orderly Inquiry into issues which have been under litigation for over three years /25/. Further, Applicants have not shown that any harm has come to them from the Boards' statements. First, there is no matter raised in Applicants' Petition which is properly before the Appeal Board at this time. Their Petition is, in /24/ Applicants' position appears to CASE to be inconsistent; on one hand they are arguing that they don't know what's being litigated, while on the other hand they are upset because the Licensing Boards are telling them in advance of their concerns. /25/ Were Applicants to prevall, it would be they who were affecting the basic structure of this proceeding in a pervasive or unusual manner, by i negating over three years of litigation and thereby depriving the i Intervenor of its due process rights. (In such an event, the Appeal [ Board would undoubtedly then be hearing from CASE.) I 40 l
g T, effect, an appeal of'a non-existent order by the Licensing Boards; the ? Boards'have not ordered Applicants to do anything, and.there is, in fact, no-order bylthe Licensing Board on which the Appeal Board is being asked'to act. Applicants'. concerns have to do with some po'ssible future action of the Licensing' Boards which may or may not ever materialize. There can be no harm to. Applicants from the Boards' putting them on notice of their concerns; to the contrary, this is beneficial to Applicants and in accord with the Byron Appeal Board decision. Even were the Boards to, at some later time, declare a sua sponte . Issue, there is no violation of Applicants' due process rights involved here; the Boards are giving Applicants due process plus advance notice of the possibility of a sua sponte issue at some later time. Due process requires notice and a right to a hearing. Applicants already have advance notice, even before a sua sponte issue has been declared; at the time the Boards declared a sua sponte issue, Applicants would receive formal notice; and then they would.have the right to a hearing (there are no hearings scheduled at present). Applicants would then put on their case, the Intervenor would put on its case, and the Board would decide what it thinks. That's all. There's no violation of due process involved. It also should be noted that there can be no claim of delay because the Boards have not prematurely declared a sua sponte issue. As Applicants themselves acknowledge.(page 2 of their pleading): "The record to date in this case leaves little doubt that there is still much to be resolved concerning the licensability of the l plant as it now stands. And the applicants, acting under new management,. have undertaken a major ef fort by a group known as the Comanche Peak Response Team (CPRT) to verify the adequacy of construction by reinspection and other approaches." 41
= - Gukl g ~In addition,~the sole matter for which the Applicants seek relief (pages 16 and 17-of Applicants' pleading) -- the consideration of management . character or competence -- does not affect the basic structure of the . proceeding in a' pervasive or unusual manner because this is merely one sub-Issue of a very complex case. Applicants' Petition does not meet the criteria of Marble Hill. However, it is a classic example of Palo Verde (which Applicants quote on pages 7 and 8 of their pleading, although they deny that it is applicable). e 9 42
44 k Applicants' "new management" is not all new At page 2 of their pleading. Applicants refer to "new management." However, their management is not all new. To the contrary, there are many of the sameLpeople in management positions or positions of authority who were in charge during the' time the plant was allowed to reach its current indeterminate state. There are important differences between the situation at Comanche Peak t and the situation at those plants referenced by Applicatts in their cited precedents /26/..For example, unlike the TMI-1 restart case'(Metropolitan ~ Edison Co. (Three M11e' Island Nuclear Station, Unit No. 1), CLI-85-09, 21 NRC, which Applicants cite on page 6 of their pleading), Comanche Peak has not yet. been declared to be a safe plant and no operating license has been issued. This is an extremely important difference /27/. I /26/ CASE in the main docket is not represented by an attorney, and we will defer to CASE in Docket 2 for any detailed discussion of precedents; however, from a layperson's reading of precedents cited by Applicants, it appears that many of.them are not applicable to the situation at Comanche Peak or that the cases cited do not support Applicants' points. It also appears to CASE that there is support for the Boards' continuing with the orderly litigation of admitted issues (as discussed in the preceding)'in the statements made by the Commissioners in the TMI-1 restart case (page 26 of the PDR version): "... acts bearing on character generally should not be 4 considered in isolation. The pattern of licensee's relevant behavior, including corrective actions, should be considered." /27/ This can be demonstrated by the following analogy: In one instance, if you have a drunk driving what has already been declared to be a safe car with brakes that operate properly, and you remove the drunk and replace him with a competent driver, the problem should have been alleviated. In the other instance, however, if you have a drunk driving a car which has no brakes, defective brakes, or indeterminate brakas, and you remove the drunk and replace him with a competent driver, that car still has no brakes, defective brakes, or indeterminate brakes. You have solved one problem, but the other problem still remains. a 43 .m. m m, _.
,b . ) Other important differences between TMI and Comanche Peak are: No - hearings have been held or are scheduled to be held specifically on management issues; there has been no extensive investigation into - - management's character; there have not been changes in management to the extent of those at TMI-1 (e.g., the Board of Directors has not been changed to include directors with " meaningful credentials and demonstrated independence;" there is no new Chairman; the President has not been reassigned to non-nuclear work of the President; there are no restrictions that prevent former managerial employees from continuing to work at the plant in new positions /28/; there are no restrictions that prevent former managarial employees from being returned to the same or similar positions after an operating license is granted). These are very important matters for consideration because management errors made in the past may be repeated by new management if the same attitude and mindset exists /29/. It is therefore necessary to ascertain /28/ This is relevant to the affidavits attached to the motions for summary disposition which Applicants now want to withdraw (see discussion on pages 16-19 and 25 herein), our discussion regarding potentially misleading and/or material false statements (see pages 36 and 37 herein), and to the efforts of Applicants' CPRT.' See additional discussion at pages 14 and 15 of CASE's 8/19/85 Offer of Proof of Lack of Independence of Applicants' Latest Plan (CPRT Plan). /29/ The importance of managerial attitude was recognized in Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-106, March 26, 1973, page 8 of PDR version: l "A demonstration that technical qualifications do exist does not necessarily provide reasonable assurance that the OA program described in teh PSAR will be faithfully fulfilled. To the contrary, as important as qualifications may be, of no less significance is the matter of managerial attitude. Unless there is a willingness -- indeed, desire -- on the part of the responsible officials to carry it ou to r3e letter, nc program is likely to be successful." 44 i
t thelextent of, and -reason, for such past management errors. If current management. cannot recognize or will not-admit past mistakes of predecessors, learn from those mistakes, and assure that proper corrective action has been O j taken (at whatever level is necessary), there is a good liklihood of repetition /30/. Further, management's past and present actions are -predictive of what they'will do in the future, after an operating license is i' Issued. The situation at Comanche Peak at this point in time ist (1) The t extent of inadequate performance by. past management has not yet been determined; it is therefore questionable whether or not all inadequate managers have been removed; (2) The extent of damage done to Comanche Peak l by such inadequate performance has not yet been determined; therefore, the proper breadth of corrective action necessary to assure that the plant can be operated safely is still questionable; (3) Some former managers remain in either their same or siellar positions; (4) Many of the new managers are temporary /31/;-(!) There la no assurance that inadequate managers will not reassume Comanche Peak responsibilities; and (6) The attitude and mindset of Applicants' new management is still, to some extent, an unknown quantity H (although indications are beginning to appear). t 4 i I' /30/ see also discussion at pages 17 through 19 'herein, especially top of page 18. /31/ For exsaple, three of the key QA/QC managers will only "be with TUGC0 through the licensing and startup of Unit 2" (see Attachment 1 to CASE's 8/26/85 (Main Docket) Response to Board's 10/15/85 Request 2 i Regarding Discovery Matters, at page 70, Applicants' response to l Question 36e of CASE's Fourth Set of Interrogatories). 45 i
m x.. t t, ) Y% - Applicants' Current Managemaat Views and Management' Plan for Resolution of All Issues (Management Plan) and CPRT Plan L [ On pages 2 through 5, Applicants discuss theit. Current'Manageme95 Views A / and Management. Plan for Resolution of All Issues (Management Plan) and CPRT L y v Plan..CASEhasthefollowingpointstomakeregardingthesk. [ Applicants' concerns regarding the Licensing Board's possibly ruling that l "if CPRT did not have the requisite ' independence' in the view of the ASLB, any testimony by CPRT personnel might be inadmissible" are totally without merit or support. At pages 4 and 5 of their pleading, Applicants discuss certain stated t I concerna regarding the Licensing Board's 8/29/85 Memorandum and Order (Proposal for Governance of This Case) (Attachment A to Applicants,' pleading):' \\' Applicants state (page 4): \\ ~ "In particular, the Boards used language which could be interpreted as expressing the views that (1) If CPRT did not have 1the requisite ' independence' in the view of the ASLB, anyl testimony by CPRT personnel might be inadmissible, Exh. A at t 4..." The refertaced portion of the Licensing Board's Memorandum /32/ states (page 4): "2.. The lack of independence of the CPRT from management m9/ e seriously affect our willingness to accept the CPRT's finI di gs, t particularly with respect to management's responsibilities. Consequently, the lack of independence might affect the admission s of evidence concerning past QA/QC failures and management's ~ responsibility for those failures." ,s ,t /32/ The portion of the Boards' Memorandum quoted by Applicants is taken dot of context from the rest of the Memorandum (see Board's Memorandum, Applicants' Exhibit f.: page 3, first full paragraph; items 4, 5, 6, 7, .and 11 on pages 4 through 8. It appears to CASE that these other statements are clear indications that.the Boards fully intended, at some point in time, to receive evidenae from the CP,BT, and that, when taken in context, they already clearly indicated (?) that lack of independence does not affect adalssibility and (2) that no prejudgment has been made as to the weight to be accorded CPRT expert testimony. A i s 46 -4, _._,,.-._rm__..m_,__.,..._.._..m_.. ..-..,,,.._,._,-,_.__._.o-.~,,.,._.,__,..._m_...
g i L f= 41 Any possible doubt as to the Licensing Board's intentions was removed in the Board's_10/2/85 Memorandum and Order (Applicants' Motion for Modification) (Attachment C to Applicants' pleading), wherein the Board clarified their 8/29/85 Memorandum to reflect "that the degree of independence of the Comanche Peak Response Team (CPRT) affects the weight of the evidence and not whether it would be raceived into evidence." (Applicants' Attachment C, pages 1 and 5). Applicants themselves recognize .the Board's clarification in Footnote 7 (pages 5 and 6 of Applicants' pleading). The Licensing Board did not reject Applicants' Case Management Plan On page 4 of their pleading, Applicants state, regarding the Boards' 8/29/85 Memorandum and Order (Proposal for Governance of this Case) (Exhibit A to Applicants' pleadinS): "This memorandum... rejected the case management plan propcaed by the applicants... " This could give the incorrect implication that the Licensing Boards rejected Applicants' Plan outright. The Board's 8/29/85 Memorandum states (page 3): "Although we reject the Plan as the sole basis for litigation, Applicants' commitment to the Plan is substantial and its careful implementation would provide important new information." (Emphasis added.) The Licensing Boards simply declined to substitute an unfinalized, unproven, unexplored totally new plan for the litigation of more than three years. 47
... ~... The CPRT is not simply verifying the adequacy of construction At page 2 of their pleading, Applicants state: "... applicants, acting.under new management, have undertaken a major offort by a group known as the Comanche-Peak Response Team (CPRT) to verify the adequacy of construction by reinspection and other approaches." (Emphasis added.) This statement could be interpretted to mean that what the CPRT is does is only confirmatory in nature. However, what they are'doing could be more properly called a corrective action program, since it is not only verification, but involves a substantial amount of reengineering and ' redesign of structures which have in the past been defended by Applicants as being adequate. It should be noted that the CPRT is not going to address the concerns raised by the Licensing Boards in their 8/29/85 Memorandum. Applicants -state'/33/t "As already noted above, CPRT is not charged with the duty of placing blame on'past management personnel for past mistakes.... In addition CPRT has not been chartered to study and reach conclusions as to how this litigation has been conducted in the paat. CPRT contains no legal expertise; and, in any event, it is the task of the Board to determine on the record before it, if relevant, whether past litigation steps were appropriate... " Applicants then list the same items from.the Boards' Memorandum as are listed on'page 14 of Applicants' pleading. They then state: "None of the items listed is on CPRT's agenda. /33/ Applicants' 9/25/85 Memorandum in Support of Motion for Modification with Respect to the Boards' Memorandum of August 29 1985 (Proposal for Governance of This Case,(Exhibit 3-2 to Applicants' pleading), pages 8 and 9. l It should be noted that', at this point in time, the CPRT Plan is still in development, although there is work ongoing. CASE has filed various pleadings with the Licensing Board and the NRC Staff (some of which'we have' referred to in this pleading) detailing our concerns regarding lack of independence of the CPRT, certain portions of the CPRT Plan, concern that CPRT will~ be addressing the specific issues raised by the -Walsh/Doyle allegations, etc. 48 u:
In summary, the Appeal Board should deny Applicants' Petition in its entirety.' As demonstrated herein, there is no matter raised in Applicants' Petition which is properly before the Appeal Board at this time. There has been no order by the Licensing Boards for Applicants to do anything. Applicants are asking the Appeal Board to take action on some possible future action of the Licensing Boards which may or may not ever materialize. They have failed to show that they have been harmed or that the Licensing Boards' actions Valch are at issue have affected the basic structure of the proceeding in a pervasive or unusual manner. Further, Applicants' Petition is based upon erroneous premises and relied on NRC precedents which are not applicable in this instance. To the extent that it asks the Appeal Board to order the Licensing Boards to cease permitting consideration of issues which are being (and have been for years) litigated regarding duly-accepted issues in these proceedings, it is improper, without foundation, and untimely by two or three years. For the reasons discussed herein, CASE urges that the Appeal Board deny Applicants' Petition in its entirety. Respectfully submitted, n _ - h, fb '. ) ps.)JuanitaEllis, President u SE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 Attachmeat: Applicar.t s ' 10/25/85 letter to the Licensing Boards advising that Applicants r7uld be sending information to the Board on matters regarding affidavits attached to Applicants' summary ' disposition motions and representativeness of U-bolt sample 49 --}}